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Michal Buchhandler-Raphael, Washington and Lee University School of Law, is publishing Overcriminalizing Speech in volume 36 of the Cardozo Law Review. Here is the abstract.

Recent years have seen a significant expansion in the criminal justice system’s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalizes various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes and possession crimes. The Article argues that in contrast with conventional wisdom’s assumption that the right to free speech is broadly protected under existing jurisprudence, much speech is currently overcriminalized under the endangerment justification. Free speech doctrines and criminal law are in tension with one another. While under its First Amendment jurisprudence the Court contracts government’s power to ban speech, criminal law constantly expands the scope of speech crimes.

The Article contends that existing doctrines attempting to explain this inconsistency fail to provide a principled explanation for the absence of First Amendment scrutiny from various types of speech crimes. To ameliorate this problem, the Article proposes a unified analytical framework for assessing when speech justifies criminalization and when it warrants constitutional protection. The proposal suggests that all speech crimes should be subject to constitutional scrutiny under free speech doctrine as well as to additional constraints stemming from criminal law theory. The Article provides several factors to guide this judicial inquiry into determining the scope of criminal bans on speech.